In Re Nicholas R. Allis

This is an appeal from an order holding defense counsel in contempt of court for tardiness. Annexed to this opinion is a transcript of the proceedings which states with precision exactly what occurred.

The Court’s oral adjudication was followed by a written order filed March 6, 1974, which parroted the oral findings in all material respects. The written order contains the following preface:

Thereafter, Allis filed a motion to vacate the contempt order and the motion was denied. This appeal followed.

It is probably too late for an effective argument that tardiness of counsel is punishable summarily under Rule 42(a), Federal Rules of Criminal Procedure, as conduct committed in the actual presence of the Court. Persuasive appellate court opinions have sustained the view that it is not counsel’s absence from the courtroom at the appointed hour which constitutes the contempt, if any. Sykes v. United States, 144 U.S.App.D.C. 53 , 444 F.2d 928 (1971); In Re Lamson, 468 F.2d 551 (1st Cir. 1972); United States v. Willett, 432 F.2d 202 (4th Cir. 1970); United States v. Delahanty, 488 F.2d 396 (6th Cir. 1973). The import of these cases is that the contempt consists not in the…

(concurring and dissenting):

I agree with the majority opinion’s holding that Mr. Allis’s tardiness could not be *1396 summarily punished under Rule 42(a) of the Federal Rules of Criminal Procedure. I dissent from the majority’s conclusion that the contempt order can be upheld under Rule 42(b).

The district court did not purport to rely on Rule 42(b), and the record fails to support the decision that the procedure followed complied with Rule 42(b). No evidentiary hearing was held, no witness was sworn, and no testimony was received. The evidence consisted solely of the facts that the time set for Allis’s appearance was March 6, 1974, at 1:15 p. m., and he did not appear until 1:35 p. m. on that date.

The majority correctly assumes that a finding of contempt under Rule 42(b) could not be sustained based only on evidence that a forgetful lawyer was 20 minutes late for a court appearance. The lawyer would be negligent, but his conduct could not be deemed a reckless disregard of his responsibilities as a lawyer nor a wilful disobedience of a court order. The majority concludes that Mr. Allis’s unsworn statement that he had been late on some other unspecified occasion or occasions…

531 F.2d 1391 In re Nicholas R. ALLIS, Appellant. No. 74--1695. United States Court of Appeals, Ninth Circuit. March 10, 1976. Rehearing and Rehearing In Banc Denied May 13, 1976. 1 Michael Lightfoot (argued), Los Angeles, Cal., for appellant. 2 William D. Keller, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellee. OPINION 3 Before HUFSTEDLER and SNEED, Circuit Judges, and THOMPSON, * District Judge. BRUCE R. THOMPSON, District Judge: 4 This is an appeal from an order holding defense counsel in contempt of court for tardiness. Annexed to this opinion is a transcript of the proceedings which states with precision exactly what occurred. 5 The Court's oral adjudication was followed by a written order filed March 6, 1974, which parroted the oral findings in all material respects. The written order contains the following preface: 6 'After notifying Nicholas Allis, Esq., of the nature of the proceeding and after affording him an opportunity to consult with counsel and an opportunity for himself and counsel to be heard, the Court finds said Nicholas Allis, Esq., to have been in direct contempt of court and certifies that the Court saw and heard the conduct constituting the…